Wednesday, August 19, 2009

I'll Take the "Wise Latina" Over Two "Death Panelists"

People who opposed the appointment of Sonia Sotomayor to the Supreme Court often cited her discussion of race, gender and judging. Although Sotmayor's analysis of this issue was tentative and layered, critics assailed her for suggesting that a "Wise Latina" would analyze issues better than other judges.

After less than one week on the bench, I definitely prefer the Wise Latina to Justice Antonin Scalia and Justice Thomas, who are clearly vying for positions on the imaginary "Death Panels" that the Obama administration is supposedly creating. In two recent death penalty cases, Scalia and Thomas voted against the inmates and in favor of execution. Sotomayor only voted in one case -- joining the liberal dissenters and voting for a stay of execution. The Supreme Court split in the cases, with a majority voting for the inmate in one case and against the inmate in the other.

The Troy Davis CaseThe Justices gave more analysis in the Troy Davis appeal. In the Davis case, the Court ordered the trial judge to give Davis -- a Georgia black man convicted of killing a police officer -- the opportunity to present newly discovered evidence that was unavailable at the time of his trial. Davis argues that this evidence would prove his innocence.

Since the time Davis was convicted, most of the lead prosecution witnesses, including several individuals who identified Davis as the shooter, have recanted. Several of them assert that another prosecution witness, who was at the scene of the crime and who identified Davis as the killer, was in fact the shooter.The Davis case has attracted the attention of many powerful individuals, including Jimmy Carter, Pope Benedict XVI, and former prosecutors and judges -- who believe Davis should have the opportunity to present newly discovered evidence that establishes his innocence.We Do Not Care If You Are Actually Innocent: You Must DieJustice Scalia and Thomas disagree with Davis and his supporters. Scalia's characteristically passionate dissent in the case makes him look like a bloodthirsty reaper. Scalia's dissent (in which Thomas joins) contends that even if Davis could establish his "actual innocence," this would not create a basis for a federal court to prevent his execution.

Scalia contends that federal statutory law would preclude any relief for Davis, even if he established his innocence. Accordingly, he concludes that ordering the district court to conduct an evidentiary hearing is foolish.

But as Justice Stevens argues, the statute cannot trump a constitutional violation. I suspect that several of the justices believe that knowingly executing a person who has sufficiently established his innocence would violate the constitution.

This Is Not Scalia's First Execution-Hungry StatementThis is not the first time that Scalia has expressed callousness towards a person facing execution. In McCleskey v Kemp, another Georgia case involving a black man convicted of killing a police officer, Scalia sided with the majority, which held that McCleskey failed to show that race impacted his own sentence. A study of the Georgia death penalty, however, made a strong case that race impacted the general application of capital punishment in Georgia (see prior blog posts here, here, and here).

Although the majority held that McCleskey failed to show racial discrimination in his particular case, during the Court's deliberation, Scalia sent a memorandum to the other justices that contained a shocking argument. Scalia conceded that juries and prosecutors make decisions based on race and that he did not need any more "proof" in McCleskey's case.

Scalia, however, argued that racism among jurors and prosecutors was "ineradicable." In other words, Scalia described racism as a natural part of the criminal justice system that courts could not end -- or, presumably, even remedy. Although I agree that racism is a serious problem in the criminal justice system, I also believe that courts have a constitutional obligation to remedy it.

PS: I never heard any conservatives reconcile their support of Scalia with their dislike of Sotomayor due to her vote against the Ricci plaintiffs. Voting against a party seeking a promotion is one thing; voting to send someone to the death chamber -- while conceding that race mattered -- epitomizes injustice.Update: In the original post, I inadvertantly omitted a link to Scalia's dissent. I have updated the post to provide a link to the opinion -- which you can read here: Scalia's Dissent in Davis.

14 comments:

Don't you think in fairness you should have posted a link to Scalia's opinon. See below. I suggest anyone moved by Darren's argument read both Scalia and Stevens opinions. Somehow, Darren neglected to note that Scalia cited how, in this case of a police officer being murdered when he came to the aid of a homeless man whom the defendant and others were beating, the "actual innocence" claim by the defendant had been reviewed and rejected multiple times by courts and executive agencies. Scalia makes a princpled and strident argument; you might agree or disagree, but it is an argument based on the law.

The absence of a link to Scalia's opinion was inadvertent -- and is now corrected (thanks). Now people can get a feel for its callousness.

Also, the details of the crime matter a lot less when most of the witnesses who helped to establish them have now recanted and point to someone else as the shooter. If newly acquired evidence might establish his innocence, the District Court should hear it.

Arguing that Scalia's dissent cited to cases does not make his ruling "correct." The District Court ruling and the Court of Appeals ruling in Ricci were rooted in law as well, but this did not stop the chorus of opposition -- including from you.

Only Thomas joined Scalia's awful dissent, and in another case, he would have allowed school officials to feel up a partially nude teenaged girl in order to find two Advil they "believed" she had.

Finally, I would love to hear you comments on Scalia's McCleskey memo. He admitted that he did not need any additional "proof" of racism regarding McCleskey's case, but he still voted with the majority who said the evidence was lacking. In this case, he doesn't need anymore evidence either.

In both cases where he didn't need any evidence, he voted for execution. He'd make a great death panelist, because it doesn't matter whether he believes the defendant proved his case or not. Either way: The defendant must die. That's a very cost effective strategy.

I don't know anything about the McClesky memo. And, of course, the "death panel" debate has nothing to do with this issue.

I assume (apology if I am wrong) that you are against the death penalty, even in the case of the murder of a law enforcement officer putting his live on the line to protect the rest of us. If so, in other words, you believe thugs should know they can kill police officers without risk of facing the death penalty. If that is your belief, it does not mean you cannot also advance a principled argument about the issue in this case, but whenever an anti-death penalty advocate presents other legal arguments to try to get someone off a death sentence, it is cause to be skeptical of the argument. Again, my apology if my assumption is wrong.

I don't think this is a case of "new evidence," in the sense of recently discovered evidence. As Scalia noted, the evidence now relied upon by the defendant has been repeatedly considered and rejected as a valid reason to set aside the death sentence.

Is there a link to the McCleskey memo, to see what Scalia said? I assume you agree with Scalia's apparent conclusion that race considerations are ineradicable" from jurors and prosecutors (I think that is probably true, but it cuts both ways in terms of effect), and that you disagree with him about how that should impact the law.

Whether I believe in the death penalty is irrelevant. I do not believe that INNOCENT people should be executed, and I do not believe that a decision to execute should depend on the RACE of the victim or the defendant (or some combination of the two).

In Georgia and in many other jurisidictions, the black-offender/white-victim combination substantially increases the likelihood of a death sentence. Also, whites are more vulnerable to death sentences because the race of the victim is the strongest factors. Because most violent crimes are intraracial, whites are impacted by race in this setting as well. I oppose the use of race in the sentencing of ALL individuals - including people who kill or who are accused of killing cops (but I interested in your sudden embrace of "empathy").

Second, I link to sources regarding Scalia's memo in the three articles I cite. The memo was found in Justice Marshall's files after he died (I believe that is correct -- check the articles).

Finally, I am not sure if racism is INERADICABLE, but I do believe it is a serious problem among law enforcement, jurors and prosecutors. But even if I believed that it was ineradicable, I do not have to join Scalia in his callousness. Even if courts cannot eradicate racism, they can provide remedies for its victims. Scalia, for example, voted for the Ricci plaintiffs, who argued that they faced discrimination on the basis of race. He had no problem providing a remedy for them -- despite his belief in the "ineradicable" nature of racism. I asked this question before: If Scalia can provide a remedy for racism when whites challenge affirmative action, why was it impossible for him to do so in McCleskey?

By the way, this statement by Scalia is just one way in which his judicial approach has mirrored Plessy v Ferguson. The Plessy court held that law could not eradicate racial distinctions -- and then failed to provide a remedy. Plessy also said that "custom" and practice could justify certain forms of racial discrimination like segregation. In US v VA (the VMI case), Scalia was the lone dissenter (who sided with the school); he argued that "tradition" justified the exclusion of women.

"Wise Latina" - This kind of rhetoric makes me want to spit I am so angry. I would feel the same way if either death panelist regularly pontificated about being a "Fatherly White Man" or "Worldly Black Man".

http://www.youtube.com/watch?v=J_KKyw8V-l0(Smokey Robinson @ Def Poetry Jam on being an American.)

Sotomayor does not "regularly" pointificate about those issues. She was speaking on a panel about race, gender and judging. Also, these categories are only relevant because they often lead to disparate treatment. Think of the GLBT context. Most gays and lesbians grow up wanting to keep sexuality a secret (for obvious reasons). But discrimination makes it difficult to remain silent. So, if I had to "spit" in this situation, I would spit on the callousness -- not the categories.

More importantly, I'd rather have someone pontificate than allow another human being to die. Scalia's dissent in this case hinges on what he purports to be a statutory limitation on the trial court, but deep down it is vintage Scalia--joyfully callous.

I could not find the Scalia memo, but found the quote below from the memo. I am not sure that Darren accurately characterized it as referring to racism. As you see, it referred to "unconscious operation of irrational sympathies and antipathies, including racial . . . "

“Since it is my view that the unconsciousoperation of irrational sympathies and antipathies, including racial, upon jurydecisions and (hence) prosecutorial decisions is real, acknowledged in thedecisions of this court, and ineradicable, I cannot say that all I need is moreproof.”

KC: It does refer to racism! How can it not -- when it refers "irrational sympathies and antipathies, including racial"? Do you think that sending a black man to the death chamber because of an "antipathy" to black people is "rational"? If so, then I guess you have no problem with the outcome of the case even if the jurors took race into account.

Of course, only a few weeks ago, you argued that Sotomayor's "sympathies" were so irrationally linked with beneficiaries of affirmative action that she should have recused herself from Ricci simply because she stated that she benefitted from affirmative action herself. If this is the case, then I find it odd that you seek to defend a justice who concedes the operation of irrational prejudice among jurors (I need no more "proof") but who then rejects a discrimination claim that results in a racially based execution. The outcome in McCleskey was much more severe than in Ricci.

Finally, I never said the comment was limited to racism; but it certainly includes racism. Also, please consider the case. McCleskey argued that because he - a black man - killed a white person, there was a greater risk that he would be executed. If true, this was the result of "irrational sympathies and antipathies" based on race - or (minus the flowery language): racism.

Darren unfairly uses "racism" to suggest that Scalia was referring to an anti-black sentiment.

Scalia actually referred to "unconsciousoperation of irrational sympathies and antipathies, including racial." Thus, Scalia as referring to "unconsious" feelings and to feelings both sympathetic to and against persons bacause of race. He obviously was not talking about "racism" as Darren spins it.

Now, as to whether Scalia's legal view is right or wrong, I'm not sure.

Anonymous: I never said that racism always results in the conviction of an innocent person. The study in McCleskey showed that race correlated with a prosecutor's decision to seek the death penalty and a jury's decision to award it in certain cases (not all of them).

KS: I find it shocking (even for someone as conservative as you) that you are attempting to cast Scalia's comment in a positive light. Adding the word "unconcsious" does not negate "racism." Perhaps you never heard of "unconscious racism"? That was, in fact, one of the leading arguments made by McCleskey and the dissent! Scalia basically agreed that unconscious racism exists, but said there's nothing the court can do about it. He was talking about racism, and all you keep doing is proving the point. If a white juror sympathetic only to white victims and imposes the death penalty only in cases where whites are victims -- and even more so in cases with white victimes and black defendants -- then that is RACISM. Apparently, you think that's just some cool cultural practice, but that is racism.

About Me and the Blog

Professor Darren Hutchinson teaches Constitutional Law, Remedies, Race and the Law, and a Civil Rights Seminar at the University of Florida Levin College of Law. Professor Hutchinson also holds the prestigious Stephen C. O’Connell Chair.
Professor Hutchinson received a B.A. from the University of Pennsylvania and a J.D. from Yale Law School. Before teaching law, Professor Hutchinson practiced commercial litigation at Cleary, Gottlieb, Steen and Hamilton in New York City. He also clerked for the late Honorable Mary Johnson Lowe, a former United States District Judge in the Southern District of New York.
Professor Hutchinson's research has appeared in many prestigious journals including the Cornell Law Review, Washington University Law Review, UCLA Law Review, University of Michigan Journal of Race and Law, and University of Pennsylvania Journal of Constitutional Law.
He has also presented his research at numerous universities, including Yale, Stanford, Columbia, University of Pennsylvania, University of Michigan, University of California at Berkeley, University of Virginia, Cornell, Georgetown, and Boston University.

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